By Paul Rosenzweig, The George Washington University Law School
Collection of bulk quantities of digital data raises constitutional issues, especially in the modern context. Similarly, the foundations of the search incident to arrest doctrine are quite shaky in the age of smartphones. Is the data on the phones protected by the Fourth Amendment? Can the rules set in pre-digital era be applied in today’s times?
The Mosaic Concern
In February 2012, the Supreme Court decided a GPS tracking-related case called United States v. Jones, in which four of the nine justices—not a majority—said that the collection of large volumes of data raises constitutional issues because it allows the collection of enough data to create a mosaic picture of a person.
With one more vote, the mosaic concern would constitute a majority; and out of that, the court could require government authorities to obtain a warrant—at least to collect bulk quantities of digital data. If the court were to go down that path, it would certainly change some aspects of our constitutional law.
Collecting Data and the Law
It would distinguish between the bulk collection of data—like the metadata in the massive databases of calling records—and small-scale collections on individual cases. Collecting all metadata may even be prohibited. But when the government sought the metadata of a specific individual, it may be allowed.
However, it is unlikely the court will take that path since it would mean unravelling a host of other related doctrines that are at the heart of U.S. criminal investigative practices.
Big versus Small Data Collections
It is quite possible that the justices will come to recognize that big data collections are different in kind, not just in degree, from collections of small amounts of data.
The issue is summarized best in a statement from a federal appeals court judge, David Sentelle, who considered the Jones case in the lower court before it went up to the Supreme Court. Judge Sentelle was against Jones in the case. His argument was that if all individual collections of data leading to the bigger picture were authorized, then the bigger picture itself was as well.
This is a transcript from the video series The Surveillance State: Big Data, Freedom, and You. Watch it now, on Wondrium.
Modern Digital Systems
Another way in which change may come lies in the technological necessity of modern digital systems. This concept was considered in a recent case called Riley v. California, which involved smart phone privacy.
To understand Riley, it is important to have a little background about a constitutional doctrine known as search incident to arrest.
The Search Incident to Arrest Doctrine
The idea here is that when there is probable cause to believe that someone has committed a crime, and when that person is arrested, that determination carries with it an authorization to search them.
Sometimes this doctrine is justified on the grounds that once there’s probable cause to arrest, then there’s also probable cause to search since the suspect may be carrying evidence of the crime of which they’re suspected.
Sometimes, the doctrine is justified based upon preserving a police officer’s safety. Other times, the doctrine is based on the argument that you don’t want an arrestee to destroy evidence, so the police have reasonable grounds to seize everything.
Based upon this historical practice and these strands of analysis, the search incident to arrest is commonplace today. The police conduct a thorough search of anybody they arrest, and are free to read or look at everything that’s in the person’s pockets.
Learn more about how geolocation data is gathered.
Shaky Foundations of the Search Incident to Arrest Doctrine
However, the foundations of this doctrine are a bit shaky to some. The police can read the phone numbers in your pocket or the text of your diary even if those writings are no threat to the officer, and even though once they’re removed from your pockets, there’s no risk that they would be destroyed.
Indeed, the search is permitted even if there’s no reason for the officer to think that the notes have any relationship to the crime for which you’re arrested. If you’re arrested for drunk and disorderly conduct in public, the police can still read your diary in your pocket, even though it had no reasonable connection to any crime of which you’re suspected. That’s the law today for physical searches even if it might not seem to make that much sense.
Learn more about the legal issues surrounding metadata gathering.
Doctrine of Search Incident to Arrest and Smartphones
Riley involved the question of how this doctrine of search incident to arrest would apply to smartphones.
The government argued that the phone was just like a diary or a note paper, and that the police were entitled to search through the phone simply because it was in Riley’s pocket at the time of the arrest.
However, the court decided that the data on Riley’s cellphone was protected by the Fourth Amendment. And it did so because it recognized that in some way, smartphones are different than diaries, and thus that the rule of search incident to arrest simply should not apply.
Chief Justice John Roberts wrote for the unanimous court that modern cellphones were not just another technological convenience, and with all they contained and all they may reveal, they held for many Americans the privacies of life.
Justice Alito put it in a concurrence that we should not mechanically apply the rule used in the pre-digital era to the search of a cellphone. Many cellphones now in use are capable of storing and accessing a quantity of information, some highly personal, that no person would ever have had on his person in hard-copy form.
And so, even though constitutional law does move slowly—sometimes too slowly—it does move. Inevitably, the law will catch up with technological reality. After all, it has to.
Common Questions about Technological Advancements and the Constitutional Laws
The collection of large volumes of data raises constitutional issues because it allows the collection of enough data to create a mosaic picture of a person.
The search incident to arrest doctrine states that when there is probable cause to believe that someone has committed a crime, and when that person is arrested, that determination carries with it an authorization to search them.
The search incident to arrest doctrine is justified on the grounds that the suspect may be carrying evidence of the crime of which they’re suspected, or that the suspect may be concealing a weapon, or that an arrestee may destroy evidence.
